Kendrick v. Erdos et al

Filing 69

ORDER and REPORT AND RECOMMENDATION - Plaintiff's Doc. 60 Motion Brief and Request to Amend Complaint is DENIED; Plaintiff's Doc. 63 Brief and Motion Request is DENIED, in part, as set forth above; Plainti ff's Doc. [66}Motion to reinstate dismissed defendants under O.R.C[.] 2921.45 (B) for conspiring to deprive Plaintiff of civil rights by fraudulent use of the Exhaustion Requirement of the Prison Litigation Reform Act. Motion Request to Suppl ement complaint to add O.R.C. 2921.45 (B) allegations against dismissed Defendants and Defendants. Motion Request to present all evidence pertaining to Exhaustion and obstruction of it by dismissed defendant and evidence of retaliation by Unit Manage r Oppy for consideration to add as defendant is DENIED. IT IS THEREFORE RECOMMENDED THAT Plaintiff's request for an order to protect privileged mail, as set forth in his Brief and Motion Request (Doc. # 63 ) be DENIED; and The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pa uperis. ( Objections to R&R due by 5/2/2023). Signed by Magistrate Judge Peter B. Silvain, Jr. on 4/18/2023. (bjr)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified on 4/18/2023 (bjr).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARK KENDRICK,
Plaintiff,
vs.
WARDEN RONALD T. ERDOS, et al.,
Defendants.

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Case No. 1:21-cv-266

District Judge Michael R. Barrett
Magistrate Judge Peter B. Silvain, Jr.

ORDER
and
REPORT AND RECOMMENDATION1
Plaintiff Mark Kendrick, a prisoner at the Ross Correctional Institution, filed a pro se civil
rights action under 42 U.S.C. § 1983 and Ohio state law. See Doc. #13. On September 7, 2021,
the Court issued an Order and Report and Recommendation concluding that Plaintiff could proceed
with his medical claims against Defendants Conley and Ross. (Doc. #15). Plaintiff was also
permitted to proceed with his deliberate indifference claims against Defendants Chambers-Smith,
Erdos, and Goodwin based on Plaintiff’s allegations of an alleged policy or custom at Southern
Ohio Correctional Facility to use psychotropic or other experimental drugs for the treatment of
pain. Id. It was recommended that the remaining claims be dismissed for failure to state a claim
upon which relief could be granted. Id. The Report and Recommendation was adopted by the
Court on September 27, 2022. (Doc. #59).
This matter is now before the Court upon Plaintiff’s “Motion Brief and request to Amend
complaint” (Doc. #60); Defendants’ Memorandum Opposing Plaintiff’s Motion (Doc. #62);

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Attached is a NOTICE to the parties regarding objections to this Report and Recommendation.

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Plaintiff’s “Brief and motion request” (Doc. #63); Defendants’ Memorandum Opposing Plaintiff’s
“Motion Request” (Doc. #64); Plaintiff’s “Motion to reinstate dismissed defendants under
O.R.C[.] 2921.45 (B) for conspiring to deprive Plaintiff of civil rights by fraudulent use of the
Exhaustion Requirement of the Prison Litigation Reform Act. Motion Request to Supplement
complaint to add O.R.C[.] 2921.45 (B) allegations against dismissed Defendants and Defendants.
Motion Request to present all evidence pertaining to Exhaustion and obstruction of it by dismissed
defendant and evidence of retaliation by Unit manager Oppy for consideration to add as defendant”
(Doc. #66); Defendants’ Memorandum Opposing Plaintiff’s Combined Motions to Reinstate
Dismissed Defendants and Supplement his Pleadings (Doc. #68). Plaintiff makes several requests
in his motions, and he makes some of his requests more than once. Therefore, the undersigned
will address Plaintiff’s requests by category rather than by motion.
A.

Motions to Amend and/or Supplement Complaint

Plaintiff seeks to amend his Amended Complaint to add defendants and claims. (Doc. #60,
PageID #652); (Doc. #63, PageID #s 688, 694-96); (Doc. #66). In one motion, Plaintiff indicates
he “need[s] to totally restructure this complaint.” (Doc. #60, PageID #652). In another motion,
Plaintiff indicates that he wishes to supplement his Complaint and request class certification.
(Doc. #63, PageID #694). Additionally, Plaintiff seeks to add claims under Ohio Rev. Code §
2921.45(B) against both Defendants and Defendants who have been dismissed from this case.2
(Doc. #66, PageID #731); see also Doc. #63, PageID #s 694, 711.

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Under Ohio Rev. Code § 2921.45(A), “[n]o public servant ... shall knowingly deprive, or conspire to attempt to
deprive any person of a constitutional or statutory right.” Further, “[w]hoever violates this section is guilty of
interfering with civil rights, a misdemeanor of the first degree.” Ohio Rev. Code § 2921.45(B). This Ohio criminal
statute does not provide for a private cause of action. See Roane v. Warden, Corr. Reception Ctr., No. 2:22-CV-2768,
2022 WL 4919972, at *3 (S.D. Ohio Oct. 4, 2022), report and recommendation adopted sub nom. Roane v. Warden
of Corr. Reception Ctr., No. 2:22-CV-2768, 2022 WL 16535903 (S.D. Ohio Oct. 28, 2022); Stewart v. Kahn, Case
No. 5:20-cv-2818, 2021 WL 2720618, at *3-4 (N.D. Ohio July 1, 2021).

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However, Plaintiff does not sufficiently inform the Court how he intends to amend or
supplement his Amended Complaint, and he did not include a proposed second amended complaint

with his Motions. See Fed. R. Civ. P. 7(b). Cf. Williams v. Zumbiel Box & Packaging Co., No. 04CV-675, 2005 WL 8161971, at *1 (S.D. Ohio Feb. 3, 2005) (“To meet the particularity requirements
of Rule 7(b), ‘a complete copy of the proposed amended complaint must accompany the motion [for
leave to amend] so that both the Court and opposing parties can understand the exact changes sought.’”)
(quoting Smith v. Planas, 151 F.R.D. 547, 550 (S.D.N.Y. 1993)). Accordingly, Plaintiff’s requests to
amend his Amended Complaint are DENIED without prejudice.

If Plaintiff still seeks to amend his Amended Complaint, he is advised to file one motion
to amend and include his proposed second amended complaint. Plaintiff is further advised that any
second amended complaint must comply with the Federal Rules of Civil Procedure governing joinder
of parties and claims. See Fed. R. Civ. P. 18, 19, 20. See also Gresham v. Washington, No. 1:15-cv1067, 2016 WL 81696, at *7 (W.D. Mich. Jan. 6, 2016) (collecting cases) (noting that permitting a
prisoner to assert unrelated claims against different defendants in the same action would undermine
the PLRA’s purpose of curbing frivolous prisoner filings and dilute the impact of the statute’s fee
payment and three-strikes provisions).

B.

Joinder

Plaintiff asks the Court for “information on the joinder of cases [he] requested.” (Doc.
#63, PageID #686). He filed four previous motions in this case requesting joinder of this case
with Kendrick v. Chamber-Smith, Case No. 1:22cv170 (Barrett, J.; Silvain, M.J.) (Mar. 31, 2022).
(Doc. #s 41, 43, 52, 54). On February 10, 2023, the undersigned denied Plaintiff’s Motions. (Doc.
#65, PageID #s 720-22).
To the extent that Plaintiff is requesting his cases be joined again, his request is DENIED
as duplicative.

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C.

Legal Mail

Plaintiff requests that the Court “put a stop to the violation of [his] legal mail providing an
order to protect and request the clerk help me count the responses from the court dating back to
October 2021.” (Doc. #63, PageID #687). In his affidavit, he stated, “Every Document this Court
Has sent me from Oct 2021 Has not been given Privileged Protection[,] opened outside my
[presence], photocopied and Im not sure Im getting every thing I suppose to be getting[.]” Id. at
705. He also submitted an affidavit from his cellmate, Travis Smith. Id. at 707-08. Mr. Smith
indicated that he has received Plaintiff’s legal mail and that Plaintiff has complained about his mail
missing pages. Id. at 707.
To the extent that Plaintiff requests an order to protect privileged mail, the Court considers
the following factors in determining whether to issue a preliminary injunction and/or temporary
restraining order:
1. Whether the party seeking the injunction has shown a “strong” likelihood
of success on the merits;
2. Whether the party seeking the injunction will suffer irreparable harm absent
the injunction;
3. Whether an injunction will cause others to suffer substantial harm; and
4. Whether the public interest would be served by a preliminary injunction.
Liberty Coins, LLC v. Goodman, 748 F.3d 682, 689-90 (6th Cir. 2014); Overstreet v. LexingtonFayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v. Daeschner, 228 F.3d
729, 736 (6th Cir. 2000)). The four factors are not prerequisites but must be balanced as part of a
decision to grant or deny injunctive relief. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th
Cir. 1985). “[A] district court is not required to make specific findings concerning each of the four
factors used in determining a motion for preliminary injunction if fewer factors are dispositive of

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the issue.” Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003), abrogated on other grounds
by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc).
“The purpose of a preliminary injunction is to preserve the status quo until a trial on the
merits.” S. Glazer’s Distributors of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 84849 (6th Cir. 2017) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). When a prisoner
requests an order enjoining a state prison official, the Court must “proceed with caution and due
deference to the unique nature of the prison setting.” White v. Corr. Med. Servs., No. 1:08-cv-277,
2009 WL 529082, at *2 (W.D. Mich. Mar. 2, 2009) (citing Kendrick v. Bland, 740 F.2d 432, 438
n. 3 (6th Cir. 1984); Ward v. Dyke, 58 F.3d 271, 273 (6th Cir. 1995)). In deciding if a preliminary
injunction is warranted, the Court must “weigh carefully the interests on both sides.” Lang v.
Thompson, No. 5:10-cv-379-HRW, 2010 WL 4962933, at *4 (E.D. Ky. Nov. 30, 2010) (citing
Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)). A preliminary injunction is an extraordinary
remedy that should only be granted “upon a clear showing that the plaintiff is entitled to such
relief.” S. Glazer’s Distributors of Ohio, LLC, 860 F.3d at 849 (quoting Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22 (2008)); see also Overstreet, 305 F.3d at 573.
Plaintiff has made no attempt to apply the above factors to his request. Moreover, Plaintiff
has raised his claims concerning the handling of his privileged mail in another action pending in
this Court. See Kendrick v. Chamber-Smith, Case No. 1:22cv170 (Barrett, J.; Silvain, M.J.) (Mar.
31, 2022). Plaintiff may file an appropriate motion concerning these claims in that case. Plaintiff’s
request for an order to protect privileged mail should therefore be DENIED.
Plaintiff also “request[s] the clerk help me count the responses from the court dating back
to October 2021.” (Doc. #63, PageID #687). Although it is not clear what Plaintiff is requesting,
to the extent that Plaintiff is requesting a copy of the docket in order to check how many Orders

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the Court has entered in this case, the Clerk of Court is DIRECTED to mail Plaintiff a copy of the
docket in this case.
D.

Law Library Access

Plaintiff also requests “constitutionally adequate access to the law library.” (Doc. #63,
PageID #687); see also Doc. #63, PageID #s 704, 712. At the time he filed this request, his
previous request for adequate law library access was still pending before the Court. (Doc. #54,
PageID #594). On February 10, 2023, the undersigned recommended that Plaintiff’s request,
which was understood to be one for a preliminary injunction, be denied. (Doc. #65, PageID #s
725-29). District Judge Michael R. Barrett adopted the Report and Recommendations on March
9, 2023. (Doc. #67). Plaintiff has not presented any new evidence in support of his request.
Accordingly, Plaintiff’s request for “constitutionally adequate access to the law library” is
DENIED as duplicative.
E.

Conclusion

Plaintiff frequently requests the same relief in multiple motions. For example, as noted
above, he requested to amend his Amended Complaint in three Motions. (Doc. #s 60, 63, 66). He
previously requested joinder in four Motions. (Doc. #s 41, 43, 52, 54); see Doc. #65, PageID #s
720-22.
Plaintiff is cautioned that the continued filing of duplicative motions may result in
sanctions. Plaintiff may seek relief in a motion without risking sanctions if he has not already
sought the same relief in another motion.
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s “Motion Brief and request to Amend complaint” (Doc. #60) is
DENIED;

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2.

Plaintiff’s “Brief and motion request” (Doc. #63) is DENIED, in part, as
set forth above;

3.

Plaintiff’s “Motion to reinstate dismissed defendants under O.R.C[.]
2921.45 (B) for conspiring to deprive Plaintiff of civil rights by fraudulent
use of the Exhaustion Requirement of the Prison Litigation Reform Act.
Motion Request to Supplement complaint to add O.R.C[.] 2921.45 (B)
allegations against dismissed Defendants and Defendants. Motion Request
to present all evidence pertaining to Exhaustion and obstruction of it by
dismissed defendant and evidence of retaliation by Unit manager Oppy for
consideration to add as defendant” (Doc. #66) is DENIED; and

4.

The Clerk of Court is DIRECTED to mail Plaintiff a copy of the docket in
this case.
IT IS THEREFORE RECOMMENDED THAT:

1.

Plaintiff’s request for an order to protect privileged mail, as set forth in his
“Brief and motion request” (Doc. #63), be DENIED; and

2.

The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing
reasons an appeal of any Order adopting this Report and Recommendation
would not be taken in good faith and therefore deny plaintiff leave to appeal
in forma pauperis. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.
1997).
s/Peter B. Silvain, Jr.
Peter B. Silvain, Jr.
United States Magistrate Judge

April 18, 2023

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within FOURTEEN days after being served with
this Report and Recommendations. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring of record at
an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless
the assigned District Judge otherwise directs. A party may respond to another party’s objections
within FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.
1981).

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